Question: We have a large meat processing facility in Northern Minnesota. We were recently hiring for one of our positions in the plant requiring work with large mechanical equipment. Because we consider this position to be safety sensitive, we require candidates for this position to pass a medical examination prior to hire. One of the candidates for the open position was rejected because her BMI exceeded our qualification standards for such safety sensitive positions. This seemed reasonable to me, but I thought I should check – can we deny employment on the basis of weight without violating the ADA?

Answer: By Joel O’Malley and Jessica Shiffman

Joel O’Malley

Jessica Shiffman

We’re glad you ask, because obesity under the ADA has been anything but a straightforward issue. Fortunately, the Eighth Circuit has recently provided much needed clarification on the issue in a case that will generally be regarded as quite favorable for employers. But before we dig into the case, here are a couple basic principles to remember about assessing whether an individual is protected by the Americans with Disabilities Act (ADA):

The ADA makes it unlawful for covered employers to discriminate against any “qualified individual on the basis of disability.” 42 U.S.C. §12112(a) (emphasis added).

A “qualified individual,” i.e., a person protected by the ADA, is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”. 42 U.S.C. § 12111(8).

A “disability” is defined by the ADA as (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1)(A)-(C).

To establish that an individual is “regarded” as having an “impairment” under the ADA, the individual must show that he or she was discriminated against “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A).

In Morriss v. BNSF Railway Co., No. 14-3858 (8th Cir. 2016), plaintiff Morriss applied for employment with BNSF Railway as a machinist. The company extend to Morriss a conditional offer of employment; however, because the company considered the position to be safety sensitive, the offer was made contingent on a satisfactory medical review. As part of his medical review, Morriss self-reported the following:

He was 5’10” tall and weighed 270 pounds,

He had once been diagnosed as “pre-diabetic” but was not currently diabetic,

He had taken appetite-suppressant medication to lose weight but not to address any health concerns,

He considered his overall health “good,” and

He experienced no difficulties or limitations in his daily activities.

In addition, Morriss’ doctor submitted records which reflected no current diagnosis of diabetes or symptoms of diabetes.

However, physical examinations by BNSF’s doctors revealed that Morriss weighed above 280 pounds and had a BMI of over 40. BNSF had an existing policy which provided that it would not hire new applicants for safety-sensitive positions if the applicant’s BMI equaled or exceeded 40. Given that Morriss’ BMI exceeded this threshold, BNSF informed Morriss that he was “[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater)” and revoked the company’s conditional offer of employment.

Morriss thereafter filed suit against BNSF, claiming that his obesity was a disability under the ADA and that BNSF regarded his obesity as an actual obesity. The federal court in Nebraska determined that Morriss had not established that his obesity was an actual disability protected by the ADA, and further granted BNSF summary judgment on Morriss’ claim that BNSF regarded him as having a disability.

The Eighth Circuit was tasked only with assessing Morriss’ claim that BNSF regarded him as having a physical impairment, and whether his obesity was an actual or perceived physical impairment. While the ADA does not define “physical impairment”, the EEOC has promulgated regulations defining the term as:

29 C.F.R. § 1630.2(h)(1). The EEOC has also issued interpretive guidance on “impairments” under the ADA:

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.

Perhaps most intriguing about this case is that the ultimate dispute was over whose interpretation of this guidance was correct: Morriss (backed by briefs submitted by the EEOC and the American Association of Retired Persons) or BNSF (backed by the U.S. Chamber of Commerce, the Equal Employment Advisory Council, and the National Federation of Independent Business Small Business Legal Center). Morriss and the EEOC argued that this guidance should be interpreted to mean that “an individual’s obesity must be the result of a physiological disorder only if his weight is within ‘normal’ range”, such that if an individual’s weight is outside the “normal” range, he had an impairment per se, and he need not show it is was the result of a physiological disorder to establish his protection under the ADA. BNSF countered that for obesity to be considered an impairment, it must, by the EEOC’s own definition, be caused by a physiological disorder or condition which affects a major body system.

Ultimately, the Eighth Circuit sided with BNSF, as well as the Second and Sixth Circuits, holding that “for obesity to qualify as a physical impairment…under the ADA, it must result from an underlying physiological disorder or condition.”

Its decision, the court explained, was based on “a more natural reading” of the EEOC’s interpretive guidance, the statutory context, and legislative intent. The court clearly did not take kindly to the EEOC’s “unnatural” reading of its own guidance, commenting that

[T]he EEOC’s hoped-for less restrictive analysis of whether an impairment exists is cut from whole cloth, for an individual must first establish that he has a qualifying impairment before the less “extensive analysis” is applied to determine whether the impairment “substantially limits a major life activity” requirements.

Thus the Eighth Circuit has made clear that, even in light of the expanded coverage after the 2008 amendments to the ADA, individuals must actually establish they have a qualifying impairment under the terms of the ADA and its interpretive guidance before coming under the shelter of the ADA’s protection. And, in the context of obesity (even morbid obesity), this means that an individual must show that the obesity is the result of an underlying physiological disorder or condition. In other words, obesity not caused by an underlying physiological disorder or condition, does not, on its own, merit protection under the ADA in the Eighth Circuit.

In Morriss’ case, the court concluded that he did not have a physical impairment under the ADA, because he failed to produce evidence that his obesity was the result of an underlying physiological disorder or condition, and that BNSF did not regard him as having a physical impairment, because there was no evidence that BNSF perceived his obesity to be an existing physical impairment under the ADA.

While the Eighth Circuit’s opinion directly addressed the “regarded as” prong of the ADA, the court’s analysis and holding appear to be equally applicable to other analyses under the ADA, as well. While this is a much welcomed case by employers, companies should keep in mind that analyses of whether an individual is protected under the ADA remain quite complicated and should be conducted on a case-by-case basis. Please feel free to contact us with any questions or concerns.

About Dorsey’s Labor & Employment Practice:

Dorsey is a business law firm with more than 550 attorneys across the United States, Canada, Europe and Asia. Our lawyers regularly handle every sort of employment matter, litigated and non-litigated. We have extensive, successful trial experience (including class and collective actions), as well as an outstanding record for obtaining summary judgments. Dorsey also has broad experience in advising, counseling, compliance and development, policy handbook review, training and other measures that can greatly reduce the likelihood of litigation or governmental enforcement actions.